Duhaime's Law Dictionary


Hostile Witness Definition:

A party's witness who demonstrates such adversity to answering questions that the trial judge allows leading questions to be put to that witness.

A witness who gives evidence at trial during an examination in chief,  that is contradictory to the interests of the party that calls him and by his manner he betrays a desire not to tell the truth to such an extent that the trial judge allows a party or their lawyer to proceed to cross examine their own witness.

During an examination-in-chief, a party or their attorney or lawyer is not allowed to ask leading questions of their own witness.

But if that witness openly shows hostility against the interests (or the person) that the lawyer represents, the lawyer may ask the court to declare the witness 'hostile', after which, as an exception of the examination-in-chief rules, the lawyer may ask their own witness leading questions.

In Lambert, Justice Farris wrote:

"[A] hostile witness is one who demonstrates it by his demeanor."

In Rodriguez, the United States Court of Appeals held:

"A hostile witness, in the jargon of evidence law, is not an adverse party but a witness who shows himself or herself so adverse to answering questions, whatever the source of the antagonism, that leading questions may be used to press the questions home."

In a 1961 Ontario case, Boland v Globe and Mail Ltd.:

"A witness might be cross-examined by counsel for the party who called him if the trial Judge was of the opinion that the witness was hostile in the sense that he showed a mind hostile to the party calling him and by his manner of giving evidence betrayed a desire not to tell the truth, and he declared that in his opinion the witness was hostile.

"So far as the conduct or demeanour of the witness on the stand served to afford proof of such an animus, the common law required no statutory alteration to provide relief to a disappointed or discomfited litigant.

"Once the witness was ruled to be hostile, the  party calling him could cross-examine him upon all relevant facts, including a statement made by him at some other time inconsistent with the testimony then given by him."

"The purpose of such cross examination is to overcome the initial assumption that the witness is credible and trustworthy on behalf of the person who called him and illustrate to the court that anything said by the hostile witness should not be believed.

"It seems generally accepted that a hostile witness includes an adverse witness, but there is still some doubt in the authorities as to whether an adverse witness is also a hostile witness."

This last statement appears to be at odds with what the Court said in Wawanesa Mutual v. Hanes as described in the definition of an adverse witness.

Compare with unfavourable witness and adverse witness.

REFERENCES AND FURTHER READING:

  • Boland v Globe and Mail Ltd., 29 DLR (2d) 401 (1961, ONCA)
  • Skender v Barker, 44 DLR (4th) 106 (BCSC, 1987)
  • Lambert v. State Farm Mutual, 467 P. 2d 214 (Washington Court of Appeals, 1970)
  • Rodriguez v. Banco Cent. Corp., 990 F. 2d 7 (US Court of Appeals, 1st Circuit, 1993)
  • Wawanesa Mutual Ins. Co. v. Hanes (1961) 28 D.L.R. (2d) 386

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